The Supreme Court will decide whether to let criminals get guns without a background check

On Tuesday, October 8, one day after the justices convene for a new Supreme Court term, the Court will hear a case that could open up a massive loophole in US gun laws. The plaintiffs in Garland v. VanDerStok ask the Court to effectively neutralize a federal law requiring gun buyers to submit to a background check, as well as a separate law requiring guns to have a serial number to allow law enforcement to track firearms.

The case involves “ghost guns,” weapons that are sold dismantled and in ready-to-assemble kits. Three Trump appointees on the United States Court of Appeals for the Fifth Circuit previously concluded that guns sold in these kits are exempt from the laws requiring background checks and serial numbers, thus making it easy for people with violent felony convictions to obtain guns simply by buying them in a disassembled state.

By law, the background check and serial number requirements apply to “any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” They also apply to “the frame or receiver of any such weapon,” the skeletal part of a gun that houses other components, such as the barrel or firing mechanism. Thus, if someone purchases a series of firearm parts intending to build a gun at home, they still must face a background check when they purchase the gun’s frame or receiver.

Ghost gun makers seek to evade these requirements by selling a kit with an incomplete frame or receiver — although, according to the Justice Department, it’s often trivially easy to convert the kit’s incomplete part into a fully functional frame or receiver. Some kits can be turned into a working firearm after the buyer drills a single hole in the kit’s frame. Others require the user to sand off a small plastic rail.

The Fifth Circuit backed these attempts to evade the law. It claimed that frames missing a single hole are “not yet frames or receivers.” The three Trump judges also argued that ghost gun kits may not “readily be converted” into a working gun because this phrase “cannot be read to include any objects that could, if manufacture is completed, become functional at some ill-defined point in the future” — even if only a negligible amount of work is required to make the gun function.

So the question now is whether a majority of this Supreme Court, which often takes an expansive view of gun rights, will sign onto this attempt to neutralize the background check and serial number laws.

The good news for supporters of gun regulations is that the Court has already signaled that it will not do so. The Court first heard this case, albeit in an expedited process, in August 2023, and it voted to temporarily leave the background check and serial number requirements in full effect while the case made its way through the lower courts. The bad news is that the vote in that August 2023 decision was 5-4, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the Court’s three Democrats. So if just one justice flips, the VanDerStok plaintiffs could prevail.

VanDerStok turns on the question of when a partially manufactured gun becomes sufficiently gun-like that it should be regulated as if it were a fully operational firearm. Congress, by applying the relevant laws to operational guns, frames, receivers, and items that “may readily be converted” into an operational gun, clearly intended that a gun need not be fully complete to be regulated.

At the same time, it’s also clear that there is a point when an incomplete gun is not yet subject to the background check and serial number laws. For example, if someone buys a bucket full of raw steel and wood that a skilled gunsmith, after many hours of work using the proper tools, could turn into a firearm, that bucket does not need to come with a background check.

Up until very recently, this question of “at what point does a gun become sufficiently complete to trigger certain federal laws?” would have been resolved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). In Chevron v. Natural Resources Defense Council (1984), the Supreme Court held that, when an agency is given the power to issue regulations interpreting a federal law (and ATF has that power over the gun laws at issue in VanDerStok), courts should typically defer to how the agency decides to resolve any ambiguities in that law.

Thus, in a less imperious Supreme Court, VanDerStok would be an easy case. ATF issued a regulation in 2022 that clarifies that the background check and serial number laws do apply to ghost guns. Under Chevron, that should be enough to resolve this case.

Last June, however, the six Republican justices voted to overrule Chevron. Their decision in Loper Bright Enterprises v. Raimondo (2024) establishes that henceforth, whoever controls a majority of the Supreme Court will have the final word on thousands of policy questions that, under Chevron, used to be resolved by federal agencies. So VanDerStok will give us an early window into how these justices intend to use their new, self-given policymaking authority.

If these justices concern themselves with the text of federal gun law, however, it’s still difficult to see how they could affirm the Fifth Circuit’s decision to exempt ghost guns from the background check and serial number requirements.

The reason why is that federal gun law does not simply announce a vague standard — that incomplete guns that “may readily be converted to expel a projectile by the action of an explosive” are still subject to federal regulation. It also provides an example of a particular kind of not-yet-ready-to-fire gun that is subject to the background check and serial number laws.

The relevant federal law explicitly states that a “starter gun” — that is, a gun with a plugged barrel that is designed to fire blanks, and that is typically used to begin track or swim races — does count as a gun that is subject to federal regulation. So if someone buys a starter gun, they must submit to a background check, even though starter guns cannot be used to shoot anyone without significant alterations.

In its brief, the Justice Department suggests that this reference to starter guns was inserted into the statute because of a “do-it-yourself gunsmith” who “distributed firearms to gang members by buying starter pistols in bulk.” He would then disassemble these starter guns and “using an electric hand drill mounted in a drill press stand, bore[d] out the plugged barrel and enlarge[d] the cylinder chambers to accommodate .22-caliber cartridges.”

That’s significantly more work than is required to assemble many ghost guns. The fact that Congress intended to regulate devices that need to be disassembled and “bored out” using reasonably specialized equipment before they could be used as weapons suggests that Congress also intended for an already-disassembled gun that is missing a single hole in its frame or receiver to be subject to regulation. A ghost gun is much closer to being a fully operational firearm than a starter gun.

Still, while VanDerStok should not be a difficult case, the fact that four justices previously voted to exempt ghost guns from background checks and serial numbers suggests that this Court will make this case more difficult than it needs to be.

In overruling Chevron, the Court declared that it should have far more control over US policy than it has had in recent decades. Now we’re going to get a taste of how this GOP-dominated Court intends to use that power.